Victorian Civil Procedure Act 2010: Case Management

In 2010, Victoria introduced the Civil Procedure Act 2010 which aimed to change the culture of civil litigation and specified, in section 7 of the Act, that disputes must be resolved in a “just, efficient, timely and cost-effective” manner. These four values are essential, and this is because they influence how all parties in a dispute, even judicial officers and legal practitioners, are to treat civil litigation. They must now always endeavour to achieve justice efficiently, saving both the time and the amount of money used in a proceeding that is endured by the courts and litigants. A method which Victorian courts implement as a means of achieving just, efficient, timely and cost-effective solutions to disputes is what is known as case management.

Case management refers to judicial officers proactively overseeing and organising the steps parties to a dispute take before trial commences in order to ensure that the parties have a chance at reviewing the issues they are facing and providing them with an opportunity to settle their disputes outside of the court system (McClellan 2010). Taking all of this information and context into account, this essay will ask the central research question of whether this reform was a necessary addition to the Victorian legal system. Ultimately, this paper will argue that such a reform was necessary in order to address the underlying and problematic issues of a costly and lengthy Victorian civil procedure, with the very existence of such problems resulting in the restriction of the public’s access to justice. Firstly, this research essay will explore the motivation behind this piece of legislation to specifically choose those four words to construct the overarching purpose of this Act and will do so by discussing case studies to illustrate the implementation of and the attitude towards case management in Australia. Secondly, it will argue that courts operated on an economic rationale in order to make justice accessible to the public, and therefore make clear the necessity of civil reform. Finally, it will be established that while it is hard to balance justice and cost efficiency as well as timeliness, ultimately it is the right goal for Victorian judicial officers to govern civil procedure, always keeping in mind the importance of efficiency.

The Victorian Civil Procedure Act’s overarching obligations to achieve just, efficient, timely and cost-effective resolutions were motivated by a need to establish the principles of case management to be just as important as the attainment of justice when administering civil justice.

In order to understand the Australian judicial system’s changing perspectives towards case management, it is important to look at two particular cases. The first is Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146, which will be referred to as the J L Holdings case. This is a significant case because it established how Australian courts initially approached pre-trial procedures and the administration of justice in civil procedure. The dispute between Queensland and J L Holdings had proceeded to the High Court because their original trial judge had refused Queensland to amend their defence and Queensland’s successful appeal, pleading that such a refusal would prejudice their argument, had allowed for the determination that the amendment should have been granted on the justification that courts should always prioritise the achievement of justice over the implementation of case management principles (Boniface & Legg 2010). The key point to take away from this case that is relevant is that this appeal had set a precedent that prioritised justice over any consideration for any consequence of delay or expense. However, this approach would soon be overturned in the case of Aon Risk Services

Australia Limited v Australian National University (2009) HCA 27, otherwise referred to as the Aon Risk case. The High Court ultimately ordered to dismiss an application for leave to amend the plaintiff’s statement of claim, declaring that such an alteration was unnecessary to the proceedings (Lyons 2010). This was revolutionary, in a sense, for courts hearing civil claims. Lyons (2010) suggests this is because following the High Court judgment in J L Holdings, litigants had adopted the presumption that they had a sense of freedom in how they conducted pre-trial procedures. The decision in the Aon Risk case had consequently dismissed such an approach, making it clear that judges should carefully consider whether applications made by parties should be granted, taking into account its necessity to a case and bearing in mind any delays or costs that could be incurred as a result of granting such an application (Legg 2014). In other words, J L Holdings prioritised justice over case management whereas Aon Risk had proposed a balancing act between the two. Considering the new approach towards case management, it now becomes clear that such an attitude bears the motivation behind the Civil Procedure Act’s overall purpose; to facilitate judicial supervision in the Victorian civil justice system as a means for the court to arrive at a just yet speedy and cost-effective decision (Croft 2011a).

It is important to realise that these civil reforms were introduced because the courts are striving to operate on an economic rationale not just for the courts’ sake, but for the greater good of others involved.

The problem of how expensive litigation is has always been an issue, and definitely not a problem that has only been a recent nuisance for the legal system (McClellan 2010). While it is important to recognise that the expenses incurred in pursuing civil litigation has its worthwhile function in suppressing civil claims that are considered to be unwarranted and petty (Doyle 2012), it is also important to maintain a balance and ensure the cost of accessing justice is not too high that most of the general community cannot access this service should they need it (Zuckerman 1994; Zuckerman 1995). Therefore, case management aids such an injustice caused by expensive litigation. Under section 47 of the Civil Procedure Act, judges have the ability to determine how proceedings are to be conducted and this can be done through, for example, forming a timetable for parties to a dispute to follow or restricting the amount of witnesses or issues parties can bring forward in a proceeding (McClellan 2010). By such an order, judges are able to ensure proceedings are dealt with as soon as possible, saving the court’s time and resources as well as the amount of money parties to a dispute are to spend in paying for their legal representation (Croft 2011b; Fenton & Watson 2014; McClellan

2010; Zuckerman 1994). To put it in rather simpler terms, the more time a court saves during a proceeding, the more money courts and litigants can save. The courts now adopt a preventative strategy by addressing disputes as soon as possible to hinder a dragged out process if it can be avoided. Arthur (2011) suggests that these reforms to civil procedure strived to enhance the accessibility of the legal system, so therefore it would make sense that the Civil Procedure Act endeavoured to ensure the courts’ procedures were cost-effective.

The Civil Procedure Act should be commended in its pursuit of administering justice in a timely and cost-efficient approach for the benefit of increasing access to justice despite the hardships courts will face in balancing justice and efficiency. It should be recognised, however, that aspects of civil procedure will be compromised when the overarching obligations for the Act are taken into account. Zuckerman (1994) identifies that should civil procedure reforms call for cost and time efficiency to be of paramount consideration to the courts, then it should be expected that some sacrifice must be had in the quality of civil procedures and subsequently, the level of precision a judgment has in reviewing a case that may be rushed. On the other hand, if a lack of efficiency results in needlessly long trials, it unjustly results in occupied staff and trial dates that could be otherwise utilised for the benefit of other litigants waiting to have their disputes heard (Legg 2014). Nonetheless, the Civil Procedure Act promotes a balance between justice and efficiency (Allsop 2014) and does not mandate the prioritisation of one over the other – it only makes sense that the legislation deems case management as the appropriate method to maintain this balance (Croft 2011a; McClellan 2010). The Civil Procedure Act determines the obligations parties to a dispute and their legal representatives are to abide by in order to provide more opportunities for early settlements and the disposal of cases in an efficient manner to free up more trial dates for other disputes (Bailey 2011). In summation, aiming for efficiency is the right approach for the courts to take, as justice cannot truly be achieved if only a few are able to receive it.

In conclusion, this essay has argued that these civil procedure reforms enacted in Victoria in 2010 were appropriate and necessary in order to improve the community’s accessibility to justice. This paper examined the changing attitudes towards case management between two key cases, Queensland v J L Holdings in 1997 and Aon Risk Services Australia Limited v Australian National University in 2009. The two examples have illustrated how initially, courts were very liberal in granting numerous applications parties asked for regarding pre-trial processes, believing that it was all for the sake of justice. But now, courts hold the achievement of efficiency to hold the same amount of importance and significance as the achievement of justice. Such a value held by judicial officers has resulted in the widespread implementation of judicial case management, a method in which this essay has identified as the means to which Victorian courts endeavour to provide the just, efficient, timely and cost-effective resolution of disputes. Further, this paper has explored the economic motivation behind these civil reforms and ascertained that it was appropriate for these reforms to address the problem of expensive litigation that ultimately acts as a barrier in accessing justice. Finally, this research essay has contended that since the legislation asks for a balance to be struck between justice and efficiency, then it is reasonable to expect courts to responsibly and carefully administer cheap and timely justice. While the difficulties in maintaining that balance is easily recognisable, nonetheless these reforms were well needed to benefit the courts, its staff and the community.